Crim Law Outline Kadish Book 2018 PDF

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Crim Law Outline Fall2018...

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UNIT 1: The Quest For Constraints Defining Crimes: The Role of Statutes Defining Criminal Conduct: Legality Commonwealth v. Mochan (Superior Court of PA, 1955) Facts: D made multiple telephone calls to home of L. Zivkovich during all times of day & night referring to L.Z. as lewd, immoral, and lascivious woman of indecent character, as well as other indecent language. Procedural History: D was tried & convicted before a judge w/o a jury. D was charged w/ misdemeanor at common law for intending to corrupt and debauch citizens of Comm. of PA and L.Z. D’s specific crimes aren’t prohibited by law. D appealed on grounds that that conduct charged in indictments did not constitute a misdemeanor at common law as there’s no statute that criminalizes this behavior. Issue: Do indictments D was convicted of constitute a criminal offence at common law? Rule: “Common law is sufficiently broad to punish as a misdemeanor, although there may be no exact precedent, any act which directly injures or tends to injure public to such an extent as to req state to interfere and punish the wrongdoer…” Whatever openly outrages decency and is injurious to public morals is a misdemeanor at common law. Parties Arguments: D argues his charges don’t constitute a misdemeanor at com law. PA. argues any act is indictable at common law which from its nature scandalously affects morals/health of community Rationale: D’s criminal intent was evidenced by overt acts beyond solicitation of adultery (which alone wouldn’t be indictable). Suggestions of sodomy and other persistent lewd, immoral and filthy language, as well as ability for operator or anyone on 4-line telephone to hear conversation combined w/ fact that 2 other persons in the household heard the language, evidence criminal intent to affect public morality. Conclusion and Holding: Affirmed. Persistent lewd, immoral and offensive language, beyond solicitation of adultery on the telephone, constitute a misdemeanor at common law. Dissent: Despite Ds reprehensible conduct, his actions don’t constitute a crime punishable under law. Majority declares something to be a crime which wasn’t previously considered to be a crime in Comm. Majority states that anything which openly outrages decency or is injurious to the people is a misdemeanor. But, legislature determines what “injures or tends to injure public,” not court. There would be no reason for legislature to enact any criminal laws if courts delegate to themselves power to determine what does and doesn’t injure public. The common law plays an important role in Comm; but, majority’s decision invades a field which should belong solely to the legislature. Notes: The Legality Principle: Nulla poena sine lege: no punishment w/o law. This principle is good b/c is gives citizens fair warning & controls discretion of police, prosecutors & juries. Legality principle bars retroactivity and vagueness and reqs that established law be announced in reasonably clear terms. But, punishing under common law helps address gaps in statutory law. The Institutional Limits of Courts: Is it acceptable for courts to provide the needed specificity, so long as they do prospectively? Or does the legality principle reflect imp. sep. of powers values in addition to those protected by req’ing prospectively and clarity? Old Common-Law Crimes: After Amer. independence, US continued to apply common law of Eng. But, as more penal laws were enacted, some states made their new legislation exclusive and repealed all common law crimes (PA was exception). The initial round of crim. enactments typically codified common law definitions, meaning many offenses retained their trad’l judge made definitions after being codified.

Starting in ‘60s, many states adopted MPC adaptations, however common law definitions can be found in state legis. New Common Law Crimes: Most states have abandoned idea that states can create new common law crimes. S.C. has never held it unconstit. for state judges to create new common law crimes. Generally, though consensus is that legislature should define criminal activity. Power of creating crime is vested in legis not courts. Meaning of Legis: Under prevailing view, crimes must be defined solely but statute, but courts interpret what the language means. How should judges do this? Consider McBoyle and Yates. McBoyle v. United States (Supreme Court of US 1931) Facts: Appellant (McBoyle) transported an airplane he knew to be stolen, across states. D was charged w/ violating the Nat’l Motor Vehicle Theft Act and sentenced to serve 3 years and pay a fine of $2K. Procedural History: Dist. court charged appellant w/ 3 years and pay a fine of $2K. D appealed to US Court of Appeals, who affirmed. Cert was granted by S.C. on question whether statute applies to aircraft. Issue (1): Does the word “vehicle” in the phrase “any other self-propelled vehicle not designed for running on rails” apply to “aircraft?” Rule (1): Court states that term vehicle calls up image of something moving on land and that other words in statute incl. “auto truck, auto wagon, motorcycle and “any other self-propelled vehicle not designed for running on rails” indicate theme of something running on land. Vehicles run whereas airplanes fly. Further, airplanes were well known in 1919, when statute was passed, but weren’t mentioned in statute. Rationale: When a rule of conduct is laid down in words that evoke in common mind, only pictures of vehicles moving on land, statute shouldn’t be extended to aircraft b/c if legislature had thought of it, they would likely have used more broad terms in statute. Further, it’s reasonable that fair warning be given to the world in language that the common world will understand. Conclusion and Holding: Reversed. Airplane isn’t meant to be interpreted as “any other self-propelled vehicle not designed for running on rails” in the context of the Nat’l Motor Vehicle Theft Act. Yates v. United States 135 S. Court 1074 (2015) Facts: Yates, a comm. fisherman, caught undersized fish in fed waters. On 8/23/07, a fed. officer boarded ship to check vessel’s compliance w/ fishing rules. Fed. officer inspected catch on vessel and noted 72 fish fell below req’d measurement. Officer directed D to keep 72 fish separate until vessel returned to port. While en route, D ordered a crew member to toss suspect catch to sea. Suspect catch was replaced w/ fish that wasn’t undersized. At port, measured fish exceeded measurement when compared to size recorded at sea and a crew member admitted that at D’s direction, he threw suspect catch overboard and replaced it. D was charged w/ violating §1519 and 2232(a). D doesn’t contest his conviction for 2232 (a). Procedural History: D moved for an acquittal on 1519 charge, arguing it sets forth a documents defense. Dist. court read “tangible object” in 1519 as a term independent of record or doc. Dist court sentenced D to imprisonment for 30 days and supervised release for 3 years. Circuit court affirmed. S.C. granted cert. Issue: Do fish qualify as a tangible object in the context of Sec. 1519? Rationale and Rule: Court states that from a dictionary reading, tangible objects inc. fish, but “plainness or ambiguity of statutory language is determined not only by reference to language itself, but also by the specific context in which language is used and broader context of statute as a whole.” The court writes that context of 1519 tugs at a narrow reading of “tangible object.” The caption and title indicate legis

meaning in enacting statues was to reference docs and records. Further, statute resists a reading that would render contemporaneous statute, 1512(c)(1) superfluous. Majority also relies on canons of construction noscitur a sociis and esjudem generis to interpret. Noscitur a sociis, a word is known by the company it keeps. Majority “avoids ascribing to one word a meaning so broad that it’s inconsistent w/ its accompanying words, thus giving unintentional breadth to Acts of Congress.” Therefore, tangible object should be read as tangible objects that involve records and docs, which are objects used to record or preserve info. Esjudem generis, “where general words follow specific words in a statutory enumeration, general words are usually construed to embrace only objects similar in nature to the objects enumerated by the preceding specific words.” If congress meant to refer to tangible objects broadly, they wouldn’t need to use other enumerations in statute. Also, ambiguity concerning scope of criminal statutes should be resolved in the favor of lenity, ensuring that criminal statutes provide fair warning. This means that if criminal a statute isn’t easily understood, then reading should be more lenient. Conclusion and Holding: Reverses judgement 1519. A tangible object in context of 1519 is one that is used to record or preserve info. A fish doesn’t constitute as a tangible object in the context of 1519. Concurring: B/c of canons of construction, and combo of the statute’s list of nouns and verbs, as well as its title, the case should be determined in favor of D. Dissent: Statute should be interpreted broadly enough as to incl. fish in interpretation of tangible objects. Context and text point to interpreting it broadly. Breadth of verbs and incl. of “tangible object” indicate legis. desire for statute to have a wide scope. Legis history points to 1519 being enacted to close gap that 1512 created. Dissent believes legis. intent wasn’t to create loophole. Notes: Rule of Lenity: Ensures that criminal statutes will provide fair warning concerning conduct rendered illegal and strikes appropriate balance b/w legislature, prosecutor, and court in defining criminal liability. Two versions of the criminal law doctrine have developed: 1) Doctrine operates to block judicial speculation about significance of context and legislative intent and reqs courts to adopt narrowest interpretation. This version was more common in the past. 2) Doctrine operates as a last resort when other tools of interpretation fail. This approach is more dominant in courts today. 

A TX legis promulgated a statute that reqs reasonable ambiguities to be settled in favor of D.

Legislative Intent: Statutory interpretation in crim cases begins w/ statute itself. Determining a statute’s meaning by consideration legis history and other evidence of legis intent is also accepted. But even where legis history exists, its not always clear. Scalia is a textualist, but will utilize canons of construct. Lenity and the Politics of Crime: A professor argues in practice, fed courts have abandoned lenity and thinks that is good and that courts should seek to fashion sensible laws rather than leaving this to Congress. He argues courts should have a big say in criminal lawmaking responsibilities. Defining Crimes: The Role of Enforcers Chicago v Morales (United States Supreme Court 1999) Facts: City council, finding that a continuing increase in criminal street gang activity was resp. for city’s rising murder rate and other violent crimes, and finding that gangs est. control over areas by loitering and intimidation, and other non-illegal activities, enacted Gang Congregation Ord. It creates crim offense out of (1) police officer reasonably believes that 1 of 2 or more persons present in public place is gang member. (2) Persons must be loitering which ord defines as “remaining in any one place w/ no apparent purpose.” (3) Officer must then order “all” of persons to disperse and remove themselves from area. (4)

Any person must disobey order. (If anyone disobeys order, they are violating ord. In its years of enforcement, police issued over 89k dispersal orders and 42k people were arrested.) Chicago enacted an ord criminalizing “loitering” in a public place w/ one or more other people. Addit’l elements of crime incl reasonable belief by a police officer that at least one of the loiterers, although not necessarily D, belonged to a criminal gang, and refusal by D to obey officer’s order to disperse. Procedural History: D was convicted under ord and appealed to SC of IL. Court held ord violated Due Process Clause of the 14th Amend b/c it was impermissibly vague. US Supreme Court granted certiorari. Issue (1): Is a crim law unconstit. under Due Process Clause on vagueness grounds when it either fails to give adequate notice of the prohibited conduct or permits arbitrary and discriminatory enforcement? Rule/Rationale: Yes. There are two separate and distinct reasons for concluding that a crim law violates the Due Process Clause on vagueness grounds. First, law may fail to provide public w/ adequate notice regarding conduct that is prohibited. Second, law may permit or even encourage authorities to enforce law in an arbitrary and discriminatory manner. In this case, ordinance is unconstitutionally vague for both reasons. W/ respect to notice, definition of “loitering” in ord—to remain in one place “w/ no apparent purpose”—is too vague b/c it fails to distinguish b/w clearly innocent conduct and conduct that is intended to be criminalized. Officer’s order to disperse did not cure notice problem b/c it was given only after conduct has occurred, and b/c order itself was vague as to where people must disperse and when they were permitted to reassemble. As for enforcement, ordinance gives police impermissibly broad discretion to determine when someone is loitering “for no apparent reason,” a def. that could apply to vast nos. of people w/ no harmful intent who might be innocently talking to a gang member. At same time, ord. doesn’t apply to most potentially dangerous forms of loitering, when gang members have gotten together w/ an “apparent purpose” to engage in illegal activities, such as selling drugs. Conclusion: Affirmed. A crim law is unconstit under Due Process on vagueness grounds when it either fails to give adequate notice of prohibited conduct or permits arbitrary and discriminatory enforcement. Concurring: Ord. is unconstitutionally vague b/c it estab. no min standards for law enforcement officers. There is no standard for what an “apparent purpose is.” Ord. could have been constructed more narrowly. Dissent: Ord. doesn’t criminalize loitering, rather, it penalizes a failure to obey an officer. Trad’l role of officer is to keep peace and they have long had duty to disperse people. Ord gives appropriate discretion to police in “observing a person whom he reasonably believes to be a gang member loitering in a public place.” An order to disperse isn’t vague and reasonably understood. Loiter is like other “crime” words and should understood by Chicago citizens. Ruling protects gang members and their companions and keeps majority of good people afraid to leave homes. Notes: Steve Chapman, Court Upholds America’s Right to Hang Out:   

Majority of people ordered to disperse weren’t even gang members, b/c they could order 100 people to disperse if even 1 gang member be present. Some police officers are not well-intentioned. You shouldn’t need permission from the gov’t to congregate in public for idle reasons.

Vagrancy Laws: Papachristou – leading case on const of vagrancy laws - Under U.S. Constit, law must (1) give a person of ordinary intelligence fair notice that the person’s conduct is forbidden by law and (2) must not give unfettered discretion of enforcement to police. In another case, S.C. noted that Const reqs gov’t by clearly defined laws not gov’t by moment to moment opinions of policeman on the beat. Also, vagrancy laws are discriminatory. Does that make them unconstitutional b/c they aim to keep “undesirables” off the street?

Chicago Response to Morales: New ord. enacted directs police to order dispersal to people engaged in “gang loitering”, but this time ord. specifies terms of dispersal. It also designated certain secret areas where the ord. would be enforced. Other Anti-Gang and Anti-Loitering Legislation: MPC prohibits loitering in a place, at a time, or in a manner not usual for law-abiding indivs under circumstances that warrant alarm for the safety of persons or property in the vicinity. Ords. reviewed in wake of Morales have been upheld where they target loitering w/ a criminal intent or where they are limited to loitering in a specific, narrow location. Even so, anti-loitering ords still raise concern about abusive enforcement. Courts have struck down ords. that prohibit loitering under circumstances that manifest crim intent, if they can’t prove D’s intent to commit crime. For ex. soliciting prostitution but no proof that the person meant to actually engage in prostitution. The Notice Prong of Vagueness: Morales notes that there are two independent grounds on which a statute can be unconst. vague. (notice and enforcement) The notice prong asks whether statute will “enable ordinary people to understand conduct it prohibits” “The mere fact that a penal statute may be framed in a way that is not entirely clear, does not mean it is unconstitutional. (Ragen)” “Court held that in focusing on the victim’s perception and not Ds intent, the statute does not give D sufficient guidance or notice on how to conform to law. (State v. Pomianek)” Problem: MT S.C. held that the statute that doesn’t promulgate a speed limit is unconst. vague. Arbitrary and Discriminatory Enforcement Prong and Proactive Policing: The 2nd ground for making a statute void for vagueness is when it encourages arbitrary and discriminatory enforcement. Other than anti-gang ordinances, police may turn to other approaches: 1) Broken windows policing – rests on theory that smaller crimes like littering, spitting, graffiti are bigger crimes. Can also lead to arbitrary discretion though and may not even be effective. 2) Hot spot policing – putting more officers in high crime areas. May be effective in some areas, but often involves heavy use of stop and frisk (which is stopping large no. of indivs in in high crime neighborhoods). Under Terry decision, S.C. said an officer is permitted to stop someone if they have a reasonable suspicion that the person is engaged in crim activity. But in 88% of NYC stops there was no further criminal investigation. And it disproportionately effected minority groups. Dist. court found that stop and frisk was unconstitutional. “The equal protection clause doesn’t permit police to target a racially defined ground b/c of misdeeds of some of its members. ( Floyd)” Doesn’t reasonable suspicion still constitute discriminatory enforcement? Race: Concerns w/ police discretion are tied to concerns w/ racial discrimination, as Morales and Floyd make clear. But supporters of proactive policing say racial justice concerns motivate these techniques b/c minorities bear the brunt of inner city crime and disorder. Those in favor of order maintenance say we do not need to be so concerned w/ limiting police discretion b/c now our communities are policed and enforced w/ auth. and interests of actual community members. But recent police shootings and encounters indicate there is more work to be done. Discretion – Chapter 10 Introduction 

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Subject matter of criminal law is framework of rules and principles that define certain conduct as crimes and determine degree of punishment attached to any criminal behavior. Discretion allows certain decisions concerning culp and punishment to be made outside of ord. doctrinal framework In a system dominated by plea bargaining (instead of jury trials), discretion of prosecutors has massive significance for two reasons, making them key adjudicators: (1) Potential reach of criminal law has widened b/c no. of criminal laws has increased, covering more conduct than any juris. could possibly punish. (2) Auth. sentences have become increasingly severe and nominally mandatory, allowing prosecutors to pick and choose what to charge D with.

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Common thought as to why this may be true is because it requires more complex moral reasoning to impose punishment rather than withhold it (leniency). But there are two important points: o 1) Power to be lenient is power to discriminate. 2) We can no longer describe charging and bargaining discretion as discretion to w/hold deserved punishment b/c crim statutes purport draconian punishments that no one actually expects will be imposed and, therefore leniency is an ex...